Opponents began to plot Thursday how to overturn a Federal Communications Commission repeal of rules on keeping the internet neutral and open.
Civil liberties groups studied the legal grounds for a federal lawsuit. Democratic politicians said they would seek a legislative remedy. And analysts on all sides weighed the political fallout.
“This is a digital albatross around the neck of the Republicans,” said Jeffrey Chester, executive director of the Center for Digital Democracy, a consumer protection advocacy group.
Far from ending the debate on net neutrality, Thursday’s FCC decision may just be the latest move in a ping pong match that will see further action in the courts, on Capitol Hill and at the polls.
“There is a lot of backlash in the public to today’s action. Members of Congress are going to go home and hear from angry constituents that they do not appreciate being sold out to the cable companies,” said Harold Feld, senior vice president of Public Knowledge, a group that promotes freedom of expression and an open internet.
The FCC voted 3-2 along party lines to allow broadband providers to block or slow web traffic and provide fast lanes for companies that pay more to deliver content rapidly. The ruling dismantles regulations, known as net neutrality, enacted by the Obama administration in 2015. The decision may go into effect within 60 days after publication in the Federal Register.
Proponents cast the move as a way to stimulate investment and innovation, and pull back on what they describe as regulatory overreach under the Obama administration.
In casting his vote, FCC Chairman Ajit Pai criticized what he called the “outlandish” claims by opponents who have claimed that the move comes at the expense of consumers and will chill a free flow of ideas and content.
It is not going to kill democracy.
Ajit Pai, FCC Chairman
“It is not going to end the Internet as we know it. It is not going to kill democracy. It is not going to stifle free expression online,” Pai said.
Even supporters of the FCC ruling say that the decision is not etched in stone.
“We want to see this issue resolved, and the only way it’s going to be resolved is through legislation or a Supreme Court decision on the fundamental questions over the agency’s authority over the internet,” said Berin Szoka, president of Tech Freedom, a technology policy think tank headquartered in Washington.
The FCC is likely to seesaw on the issue again once Democrats return to power, he said.
“It’s only a matter of time before we have a Democratic administration, whether it’s three years or seven years, and a Democratic FCC,” Szoka said.
Civil liberties groups said they would participate in a federal lawsuit challenging the FCC ruling, and that dozens of groups are likely to join in.
This is America. People are going to sue.
Harold Feld, senior vice president of Public Knowledge
“This is America. People are going to sue,” said Feld, adding that the most likely grounds would be that the repeal is “arbitrary and capricious” under the Administrative Procedure Act.
“You have to acknowledge that you are reversing policy and you have to explain why the new policy is the better policy,” Feld said.
Szoka, of Tech Freedom, said he doesn’t think a legal challenge will prosper.
“The D.C. Circuit has time and time again found ways to let the FCC do what it wants to do,” Szoka said, referring to the appeals court in Washington. He added that action will also unfold in the political sphere.
Several Democratic senators, including Sen. Gary Peters of Michigan, said they would push for a resolution of disapproval under the Congressional Review Act to overturn the FCC ruling and restore the net neutrality rules that went into effect in 2015.
Such resolutions allow Congress to reverse regulatory decisions at federal agencies with a simple majority vote in both chambers.
Others saw little hope of success with that tactic.
“Republicans control Congress, and a Congressional Review Act would have to be signed by the president. It’s not going to happen,” Chester said.
Another activist against repeal of the 2015 FCC provisions put more hope in drumming up grassroots pressure against the move.
“Net neutrality principles are fundamental digital rights,” said Ferras Vinh, policy counsel for the Open Internet Project at the Center for Democracy & Technology, a think tank on internet, privacy and security. “Fifty-eight percent of census blocks in the U.S. have one or fewer broadband providers.”
“It’s very possible that members of Congress who supported the repeal are going to be held accountable in the upcoming election cycle,” Vinh said. “It’s going to be a politically precarious position.”